On 25, February 2021, the Information and Broadcast Minister of India released the Intermediary Guidelines and Digital Media Ethics Code. These rules are effective immediately. Such immediate implementation is necessary because of the raging misinformation campaigns, and unregulated social media content. These are exacerbating the fissures within the society. The new Media law aims to shut those information led discrepancies in society. These intermediary rules apply to all the internet curated content providers and intermediaries. The applicability of these rules is quite wide. If you decide to set up a website that provides information on current affairs, if you decide to design an application to exchange information, if you decide to start a blog which of course publishes only a curated content, then you should do your job following this law. But, if you start a personal blog, then this is not applicable. On the whole, it is a self-regulating framework provided to the online publishers and intermediaries by the government. However, there are certain concerns with this gazette that will be viewed in this article.
In the lieu of this self – regulating law, an examination of WhatsApp’s encryption system would provide a more critical view on the new guidelines. WhatsApp claims that its platform provides an end to end encryption to protect the privacy of the user communications. In the intermediary guidelines, article 3 (1) (d) brushes away the end-end encryption of social media platforms. Firms like Facebook gained the trust (at least initially) because of the end to end encryption. With the government mandating these platforms to provide them with the source of the content, the intermediary platforms have to take a shot at the encryption. Else it is not possible to provide the information of the source.
However, an interesting and much-needed mechanism has been mandated by these new guidelines. The grievance redressal mechanism provided by section 3 (2) is a welcome move. All the intermediaries shall provide the same grievance redressal officer on their platform. Any complaint shall be acknowledged within 24 hours and shall be solved within 15 working days. There is also an oversight grievance redressal system as provided by the rule (13) of the intermediary guidelines. Under this rule, an unanswered complaint or an unsatisfied answer would have a chance to appeal to the higher authorities. This appeal would be sent to Level II of the self-regulating body to which the publisher is a member. Level II body is an inter-departmental committee. This committee is only an advisory committee and any action on the intermediary is a sole prerogative of the Ministry of Information Technology. Ironically, this procedure includes a long process with an unnecessary advisory committee. Further, India is a country where RTI filings are not properly addressed even though there is a proper redressal mechanism with an appellate authority. This grievance redressal mechanism might end up being functional only on paper. The government has provided 3 months to establish such a grievance redressal system on their platforms, and till now no intermediary has put up such a system.
These rules are no doubt necessary and more stringent laws may be required to keep the misinformation and propaganda in check. However, if the measures are to be made stringent, they would appear similar to that of Chinese laws. Already, Indian foreign policy is thought to resemble that of China. China and India both align their nationalistic fervor and historic glory in molding their foreign policy. This new social media law appears to make sure that India is not lagging behind China in strictly codifying the society. It uses vague terms like content should not be defamatory [3 (1) (b) (ii)], threatens unity, integrity, sovereignty, defense, of India [3 (1) (b) (vii)]. China in its constitution also uses similar vague terms to which many scholars pour in criticism. Within the Chinese constitution, Article 25 constitution provides publishers with a list of types of content that are strictly prohibited. They include ‘incitement to secession’, ‘sabotage of national solidarity, ‘disclosure of state secrets, ‘promotion of obscenity, superstition or violence’ and, ‘harm to social morality and excellent cultural tradition of the nation’. Article 8 categorizes acts that are ‘manufacturing ethnic conflict and incitement to secession’ through ‘fabrication or distortion of facts’ or ‘publication or spreading of words or speeches’. Such vague terms are opined to be a cause of self-censorship in China. If the language used by the Indian government and the Chinese government is similar, then self-censorship can also be thought to dawning in India.
The Rules could have been much better if technology is understood
Instead of blanketly asking the intermediaries to provide the information of the source, the government could have deliberated with the technical experts and arrange a software key to decode the encryption whenever the responsible authority asks for the data. In such a way, the privacy of the individual will also be protected and the platforms will comply with the regulations.
Another irritating development is the mention of informing the users about the legal agreements and the data policy of the digital platform. This is no new approach. It is in practice for many years and most of the users will not read a line of the agreements. When online services become a necessity of life, it becomes the prerogative of the government to make sure that the public is well aware of all the regulations and guidelines. Perhaps a better way is to introduce a course in all levels of education. Moreover, consent of a user to use google maps, email services, bank applications is not all consent. These have become necessities and if consent is not provided from an individual, these services are not provided. I reiterate here that necessary consent is not consent.
Conclusion
A short example would summarize the incapacities of India. Recently, the Competition Committee of India has intervened when WhatsApp updated its policy terms. WhatsApp tuned their policy to share the data with a third party via Facebook. This would give them an undue advantage on digital marketing which has become the ubiquitous business model. Strong laws on data portability would have avoided this ex-ante. To maintain a level playing field, CCI has to step in and yet there is no law. Even the new guidelines for the intermediaries do not have a basic framework (to say data legislation). Further, intermediaries are allowed to collect and store the data. Irony is that, this rule is enacted without the data protection law.
Devising and maintaining trust in the online content creators and users is becoming ever important. Apart from all the mentioned concerns and developments made by the Information Technology Rules, 2021, a central repository of citizens’ data which is described in the India Stack document would be welcome progress. Though the government needs to have the access to digital data, mocking the privacy of citizens is not an answer. A more technical solution must be adopted where access to the digital data from the social media platforms would be gained by the government through a thorough technical process, independent of the human-led institutions. Further, the vague terms used in this gazette appear to be similar to that of the Chinese constitution. The path towards regulating social media should be carefully treaded so that it follows and respects democratic values.
